Caldwell v. Travelers Insurance Co.

Yol. 1924.

Caldwell v. Travelers CLARA BELLE CALDWELL TRAVELERS IN- Appellant.

SURANCE COMPANY, Banc, In December 1924.

1. ACCIDENT Meaning INSURANCE: of Accidental Means: Inten- tional Act: cause, Unforeseen Result. The word “means” means equivalent and accidental result is not cause. If in accidental beneficiary order policy recover on an accident insurance must show that the insured’s death “accidental resulted from means” injury she produced must show that the means which accidental-, or death simply and not un- that the result was unexpected. by foreseen and The rule announced Louis the St. City Appeals and the Kansas Court of in certain cases that where injury unusual, unexpected or death is the or unforeseen result act, means, an intentional or death is though proof mishap slip even there is no or the act or event it, which caused that, is not correct. The true rule is an where unexpected doing unusual or result occurs reason of the act, slip mischance, mishap insured of an intentional where no doing itself, ensuing injury occurred in the of the act or death means; ap- not caused it must be made to pear produce accidental, the means used to enough may unusual, unexpected it is not the result or un- jurisdictions [Authorities foreseen. of this and other at reviewed length.] Operation -: Subsequent -: for Hernia: Obstruction of operated Bowel. hernias, insured was for two and th-e petition alleges proof operation and the shows that was skill- fully performed. mischance, slip There was no evidence of or mis- hap, any unexpected, occurrence, or of unusual or unforeseen dur- ing performance. withstanding highest its Noth care skill and it, performing occurred, an obstruction of the bowel which con- cededly days later, caused insured’s five death and after a second operation performed had been in a futile effort to save his life. Held, that, assuming that the obstruction his the bowel and ensuing unexpected opera- death the unusual were result of the skillfully (at request) intentionally done, tion insured’s judgment death was not the result of accidental and the for beneficiary necessary must be reversed. To recover it was something unforeseen, unusual, show that unin- during operation intentionally performed; tentional occurred enough bowel, it was the obstruction of death, expected, insured’s was not foreseen or that did not accident, operation. but followed an intentional SUPREME OF COURT v. Travelers Insurance Co. Operation: Request

3. -: At Act. Insured: His Intentional surgeon operation request performing at What the does insured, employment under the of insured is act just performs hands. as much if the it with own Inconsistent Counts: on De- Review COMPELLED 4. ELECTION": Appeal. compelling fendant’s The action of the trial court others, petition plaintiff counts her and two between two to elect ground other the first two were inconsistent with the on the appeal alone, two, after verdict be reviewed defendant’s cannot remaining counts, plaintiff judgment two where did on the exceptions ruling although plaintiff’s appeal, to the court’s also exceptions. duly bill of a term saved were X, X, Subjects Accidental, Pertaining of Headnotes: C. Citations Insurance, par. 72; Appeal Error, p. 396; X J. 4 C. C. J. Accident Cyc. 2592; 2588, Headnotes pars. 26 2 Accident Means. 1607. and 3: J. 72, pars. 73. X Cr J. Insurance. City Circuit Appeal Court.—Hon. St. Louis Victor Judge. Falkenhainer, H.

Reversed: Angert appellant. & Sullivan Hooker,

Jones, though surgical (1) unusual, of a direct, p. operation C. 430; 1 J. not accidental Ram- Rep. (Tenn.) Casualty sey L. 651; 13 Am. Co., Ins. v. Rep. 657; L. Kindall v. Brand, Protective Co. 13 Am. v. Maryland (Ore.) Casualty 752; Herdic v. 169 Pac. Assn., Traveling 199;" v. 149 Fed. Carnes 396, 146 Fed. Co., Lovelace v. 231; Protective Assn., Iowa, 106 Men’s Cas, Stokeley Fidelity & 193 106; Co., 126 Mo. v. Assn., Ry. Co., 34 Conn. 574; Ins. Rock Ala. v. 90; Southard (Cal.) 1029; Pac. Bennetts Co., v. Ins. 156 Travelers (Cal.) Ry. Olinsky 964; v. Pac. Life, v. 178 Occidental (Cal.) 835; Cobb v. Preferred Acc. Mail 189 Pac. Assn., Acc. Assn., 42 Schmid v. 818; 96 Ga. Assn., Ins. 133 N. App. 483 v. Travelers Ind. Husbands ;(cid:127) Traveling (Ind.) Men’s Assn., E. Iowa 130; Carnes v. Traveling Assn., Men’s 107 106 Feder Iowa, 281; v. Yol. 621 v. Travelers Insurance Co. Traveling Iowa, 538; Smouse v. Men’s Assn., 118 Iowa, Lehman v. Great 436; Western Acc. Assn., Iowa, Traveling Licldeider 118; v. Assn., Men’s 151 N. W. (Iowa) Salinger Fidelity 479; v. Co., 178 Ky. (Miss.) 369; U. S. Co. v. Cas. Malone, So. 896; (Mont.) Tuttle v. Pacific Ins. 190 Pac. 993; Fane Assn, Ry. Supp. National Appel Mail Clerks, N. Y. Supp. 222; v. Aetna Life Ins. Co., N. Y. 238, 180 N. Y. affirmed Niskern 514; v. United Brotherhood, Supp. App. 87 N. Y. Div. 640, 364; Barnstead Trav- App. Supp. elers Assn., Div. Y.N. 416; 155; Johnson, Cas. New Amsterdam Co. v. 91 Ohio, Pledger v. Men’s Acc. (Tex.) Business 197 S. W. 889; Westmoreland v. Preferred Ace. Ins. Co., 75 Fed. Shanberg 244; Travelers Ins. Co. Seldefi, 78 Fed. 285; Casualty Fidelity (C. A.); v. ings & 158 Fed. Co., 1 C. Hast- Ins. v. Travelers Fed. Co., 190 258; Whitehead v. Ry. (C. A.); Mail Fed. Assn., 269 25 C. Scarr Gen- v. Kings eral Acc. 1Co., Bench, 387; Assur. Clidero Scot- v. (2) plain- Acc. Ins. 29

tish Scot. L. Co., R. requires theory on even her own case, tiff’s of the law, mounting inference on inference a manner which may Casualty not be done. Griffith v. 290 Mo. Co., 462; Phillips v. Co., Insurance 288 Mo. 183. respondent.

James J. O’Donohoe (1) The insured died accidental means, within meaning policy. Fidelity Eicks & Cas. Co., v. (Mo.) Fidelity 253 & S. Dezelle 1029; W. v. Co., Cas. 253; 176 P> Mo. Lovelace v. 126 Mo. Assn., Travelers 104; Berry- (Mo.) Bellows v. 203 Co., 978; Ins. S. Travelers W. Surety man Southern Mo. Co., 379; v. 285 Fetter v. Young Ry. Fid. & Cas. Mail Co., 256; 174 Mo. v. Assn., App. 325; 126 Mo. v. Travelers Prot. Assn., Beile 155 App. Mo. 189 629; Co;, Merrick v. Travelers Ins. S. W. (Mo. App. App.) 84 Mo. 392; Assn., Ins. Sommers v. Hooper App. 166 Mo. 605; Co., v. Standard L. & A. Ins.

622 SUPREME OF COURT v. Travelers Insurance Co. 209; Benefit, Anderson v. Mutual 231 S. (Mo.) App.) W. Bus. 283 75; Assn., Men’s Acc. Mo. 442; Andrus v. Goodes Mo. v. Com. 174 Travelers, 330; Order United App. Dris- kell v. U. & Acc. Ins. 117 Mo. Co., App. 363; H.S. Colum- Paper Fidelity bia Cas. 104 Co., Stock Co. Mo. App. v... Cas. 157; Co., Johnson Continental 122 Mo. 369; v. App. Cas. 192 App. K. Mo. Co., 303; Greenlee v. C. Rowe v. Higgins U. 186 v. Midland Assn., Iowa, 454; S. C. T. 431; Maryland & Son Cas. Co., Co., Cas. 281 111. Hood v. & Co., 406; v. F. 184 Mich. 223; 206 Mass. Johnson G. Griffis, 126; Ind. Freeman Mer- U. Cas. 186 S. Co. 35; A. 156 Mass. Assn., cantile Mutual Ins. Fed. Atlanta Accident 178; Co. v. 65 Assn. v. Melick, 709; v. Preferred Accident Ludwig 104 Ga. Alexander, v. National 510; 113 Minn. Budde Travelers’ Co., Ins. Co., 1219; Frommelt v. Travelers Ins. 184 Iowa, 454'; Co., Iowa, 186 66; Higgins Minn. 150 447; 187 Business Men’s Elsey Co., v. F. & C. Ind. Acc. 4 354; Fed. Schiefelbuseh, Cooley’s 262 Briefs Assn. v. 1 pp. C. J. et Insurance, 156-157; seq. 427 on Law 2864-66; A, secs. L. A. 1916 R. Joyce Insurance, notes; 1050; A. 481; A, L. R. p. p. F, L. R. A. 1917 475; p. Acc. Co., Trav. Mut. N. Y. 148; Townsend v. Com. N. 18; Acc. & Y.' Int. St. G. Lewis v. Ocean Miller 251; Fed. v. Fidel- Lewis, Assn. v. Men’s Bus. Fed. v. State 836; Hornby Life, & Cas. ity Interstate Business Men’s Assm v. 84; (Neb.) N. W. certiorari 662; denied S. U. Fed. Lester, 257 Fed. 93; Great Co. v. South- Allison, Life Ins. State Co', Aetna 676; Pac. Churchwell, (Okla.) Ins. ern on sec. Insurance, .265 Fed. Richards 6; v. Brand, Life seq.; et Words and Phrases, pp. and 385; Words Series) seq. 31 et pp. (2 Phrases two upon This is an action BLAIR, J. E. DAVID S. Joseph issued to insurance of accident policies n death his case of as the and payable beneficiary. Caldwell, Belle his Clara wife, to Yol.

Caldwell v. Travelers petition counts. The first and second in four was drawn upon policy and third one and were based counts policy. upon based the other fourth counts were upon required plaintiff count to elect trial court pro- involuntarily proceed, elected to she she would and upon of counts trial the second and fourth ceed to petition. general de- to counts was answer said plaintiff by jury resulted in a verdict for nial. Trial upon fourth and count for $4032.50, second unsuccessfully moving new for a count for After $6065. appealed court. defendant to this trial, second, complaint sufficiency of the of the No made unnecessary petition, hence it and fourth counts say than to that the second to notice the further same policy alleged insur- the issuance of accident count of whereby defendant insured the life insured, ance to principal plaintiff’s in her of husband for the favor sum with accrued accumulations of one-half of of $2500 against altogether, making “from sum, death, $3750 bodily directly independently injuries, of effected through external, all other and accidental causes, violent ninety days alone within date of acci- from said means injuries if sustained manner or, and formas dent; independently exclusively all shall, aforesaid of immediately, wholly continuously dis- causes, other Joseph prevent from Caldwell, able and performing S insured, every any duty pertaining kind of period occupation, during of such continuous disability hundred and within two weeks the date Joseph result in the shall death of accident S. Cald- plaintiff pay Belle.Caldwell, Clara herein well, principal said of two thousand five sum hundred to- dollars, gether herein- as accumulations the further sum with after stated.” alleged: day “That on

It is then or about 6th Hospital, City at Bethesda November, 1920, in the Joseph said Missouri, Louis, Caldwell, St. State S. operated inguinal insured, for abdominal MISSOUEI, SUPEEME OF COUET v. Travelers Caldwell operation ruptures and umbilical and the hernias, injuries inflicted accidental and were unavoidable perito- organs, including omentum, the the abdominal consisting neum, intestines, blood arteries and vessels, organs cutting tearing of of such and said lacerations, operation ruptures or for the usual result of an is customary skilled manner usual and hernias the usually tearing surgeon, cutting and such lacerations, plaintiff being that results, no ill but avers followed and accidental intestinal obstruc- thrombosis operation injuries aforesaid, from the tion followed Joseph Cald- thereof and as a direct result the said S. day of or about the 11th insured, the died on well, ninety days of date 1920, and within from November, accident. injuries plaintiff further that the avers

“And independently exclusively other all of aforesaid, wholly immediately, continuously disabled causes, prevented Joseph Caldwell, insured, S. n performing every any duty pertaining to kind of occupation namely, date 6th accident, from the of his namely, day death, of to the date of November, 1920, day 1920.” November, the 11th alleged plaintiff wife and then insured and that all conditions the widow now payment premiums policy, including thereon, payment complied plaintiff that vexatiously with; were demanded pay the and that defendant refused to amount due. allegations fourth count were substan-

tially except as those of second count, same policy originally therein sued on was issued and that accrued accumulations amounted to $5000 at the the insured. death of $7500 plaintiff The evidence offered show tended to operated upon that November 6,1920, insured was only Not for two hernias. does evidence but show, operation skillfully alleges, petition performed. any slip There is no evidence of mischance, Yol. v. Travelers Insurance Co. unexpected, any mishap, unfore-

or nor unusual or of opera- during performance seen the of occurrence said surgeon operating not he could tion. The testified that any over, did he do it and that he do it better if should any any more one could No think else do better. way cutting by or laceration caused than of necessary opera- actually performance in the the of request operation performed of at the tion. the insured.

Notwithstanding the evidence uncontradicted highest performing exercise of the skill and care in the operation, occurred, of the bowel obstruction concededly days caused later, insured’s death five which operation performed after a second had been necessary life. effort save It is not here futile to plaintiff the evidence which claims to detail tended insured came to his death as result show operation Assuming, relieve the first hernias. point now be purpose discussed, ensuing of the bowel and obstruction death were the un- unexpected operation results of the usual and skill- thus plaintiff fully performed, can recover under terms policies of the contract accident insurance here involved? plaintiff can

Before recover she must offer sub- tending evidence to show stantial that her husband’s injuries bodily . through resulted “from death . . question violent and accidental means.” No external, is to the external and raised as violent means. The sole ‘‘ ’’ question what meant is surgeon It cannot be doubted what did in operation request performing the at the and under the employment just of insured the act of insured, performed operation if insured had much as with hands. his own is true under rule that This what through himself. another, one he does does clearly There are two lines of defined this question. where an unusual or that, One holds unex-

305 Mo—40. SUPREME OP COURT v. Travelers doing by

pected reason of result occurs slip no intentional where act, mischance, of an or mis- hap doing ensuing injury the act occurs itself, is not accidental means; death or that it appear means used that the must accidental, and it enough may unusual, that the is not or unforeseen. other line of cases holds that where or unexpected or unforeseen unusual,

death is the result of injury or death act, an intentional proof though mishap, no there is even slip mis- ordinary anything out of the the act chance, injury or death. caused such event imposing array have cited an Industrious counsel of jurisdictions. other In the this and from number cases respondent appellant. far has outdone the cited of cases By cited 116 cases count her counsel has and actual text- point array a alone. Such formidable to this writers has industry challenged and the the interest of writer although entirely laborious, not the un- undertake examining every great case cited. pleasant, of task point found in majority not those are of cases question before us. the have which discussed decisions

The Missouri of question cases, the second line have followed that, injury result of an inten- where occurring as should be considered act, such tional may All of cases, means. question, squarely have decided have be said City by and the St. Louis the Kansas decided Courts been Appellant these Appeals. contends cases are of great weight of the best considered opposed to the cases asks this court examine and Missouri, outside of Missouri and law question for itself declare spent great subject. of time and I deal labor have jurisdictions studying from this other and in appellant conclusion that to the is cor- have come and that rule this State, its contention rect so Yol. Insurance Co. authoritatively has been

far as the law declared our appeals,' harmony is out of courts of with the best con- think elsewhere not sidered cases I accord with reasoning. present my To discuss the cases sound reached, for the will reasons conclusions necessitate writ- length. ing at considerable

Missouri Decisions. Fidelity Dezell v. 176 Mo. (Banc, 1903). taking Insured died the result of vol- morphine prescribed by untarily physician a dose pain. up The answer to alleviate set that- insured in- tentionally morphine and took the that the result, death, the accidental result therefore insured did not clearly It does not appear die accidentally whether insured took an overdose or took prescribed physician. the exact dose The instruc- theory upon the tions were based insured accident- ally majority with fatal took overdose results. The opinion question does discuss 'accidental re- intentional act. It rode off on sult of an other issues, apparently that if death assumed resulted- from in- taking unintentionally tentionally the medicine and tak- plaintiff ing was entitled to an overdose recover. The opinion separate held that J., Marshall, although excepted policy the facts, authorized under poison “resulting anything death cidentally ac- administered, taken, otherwise absorbed or majority paragraph In of the inhaled.” this court Nothing case an decided in the it concurred. constitutes authority plaintiff’s contention. for Assn., 104 126 Mo. Protective v. Travelers

Lovelace 1894). (Div. Insured and killed at- was shot while One, put tempting office. another out of hotel It through accidental al- death resulted held though man him. who shot The insured assaulted proposition insured decision rested knowledge man other armed and that the no had SUPREME OF COURT v. Travelers Insurance Co. intentionally not assume risk of did death. hence support plaintiff’s no contention. affords (Mo.) Travelers Insurance Bellows v. S. W. 1918). (Banc, The insured aas result of a beat died footpads. apparently ing case is at the hands point. accidental means of not in death was assumed by the court. Surety

Berryman (Div. Mo. 379 2, 1920). assaulting while was killed another. no had reason think ad held deceased It was vershry There was no other discussion of armed. of an intentional act. The case the Lovelace Case numerous in line other is with reports to be found of this same sort cases of the several of are discussed states, and the various opinion. this Accident 283 Mo. v. Business

Andrus Men’s 1920). (Div. Insured died from Two, 442, 223 S. W. judgment carbolic acid. Plaintiff had self-administered judgment appealed. The was reversed defendant in instructions. court held for error This and remanded intentionally took carbolic acid to take that if deceased that the bur- not authorized, his life, Judge White, suicide. to show den on defendant in the case court, commissioner, then said: “This Association, 126 Mo. Travelers’ Protective Lovelace quoted 638, A. Am. St. 209, L. 877, 30 R. S. W. only not from the accident, a number of definitions reported in a number of but from dictionaries, toas so them an ‘accident’ In none is states. defined produced is a result intentional act. Where include unanticipated, unexpected, unintended, a means produced are the result if act and but accidental, exactly the intention with in accordance what was ours). (Italics The case accidental.” actor it was not certainly plaintiff’s authority supporting conten- tion.

Yol. Casualty Fidelity & Mo. Co., 279, Eicks v. 1923). (Div. Insured had an altercation One, S. 1029W. picked up neighbor, unexpectedly a broom awith who resulting hitting him in his head, over the death. handle, opinion injury or death While the discusses acciden- suggests there no difference be- tal means and is under the unforeseen acts and unforeseen results tween jury in that that the Missouri seem decisions, would ad- that the act of insured’s have found case could well versary just unforeseen as its suggestion under the obiter that such result and properly ruled on The case facts there issue. Surety authority Berryman Mo. 379, Mo. where Lovelace v. Travelers recognized. clearly one where case is distinction was through is not means, accidental death was caused plaintiff’s ac- under the issues authority contention for tually decided. (Div. Mo. 256 Fidelity

Fetter win- assisting to-raise a son 1903). Insured was One, pushing a win- with stuck. ITe was pole slipped which had dow sash throwing pole out, dow when days thirty from hem- against within a table. He died Autopsy kidney. a cancerous orrhage revealed of the kidney. evidence substantial that there was held condition jury cancerous authorizing to find that against kidney the table. fall to the due accidental means be the held to fall was properly de- case was that the It is clear death. case. point in the instant facts on the it not in cided, but Supreme foregoing all the Missouri constitute respondent. be said that It cannot cited Court cases the rule Supreme have established decisions Court our those plaintiff. said "What contended proposition, concerning if the or death was the may this However, can-

justly as obiter. be considered Courts of Missouri of the decisions not be said Appeals. SUPREME OP COURT

Caldwell v. Travelers Young Railway App. (St. v. Mail 126 Mo. Assn., 1907). ruptured Louis, insured was a mail clerk and lifting lung* heavy blood vessel in his while mail sack. undoubtedly unexpected of result mishap an intentional act. There nowas evidence of slip. opinion discusses a number cases of which I including Traveling will hereafter to, refer Feder v. Men’s 538; Assn., Iowa, Niskern v. United Brother Supp. hood of C. N. Y. McCarthy J., 87 v. 640; Travel Ins. ers 15 Fed. No. Cases, 8682; Cobb v. Accident Assn., 818; Ga. Southard v. Assurance 34 Conn. Appel Supp. 574; v. Aetna Life Ins. N. Y. Co., 83 238; Clidero v. Accident Ins. Co., Scottish 19 Session Cases, (29 303) Traveling Scottish L. R. Smouse 436. The court came Assn., Iowa, Men’s to the con foregoing harmony clusion that were out of page with the best cases. Bland, considered at J., foregoing said: “In the cases it aus too seems strict and illiberal definition of the term adhered to. At any they general rate not reconcilable are with the trend of the cases, best American considered which hold that produce accidental are those means which which effects probable consequences are not the natural and of the probable act. ‘An effect which not the natural or is con sequence produced it, of the an effect which means which ordinarily reasonably does follow and cannot be an ticipated from the an effect use of which means, produce the actor did not intend to and which he can charged design produced producing, not be by with the of is Cooley, [4 means.’ Briefs of In Law says Joyce ‘may pp. accident an surance, 3156-7.] attending performance unusual event a usual necessary or an of a act, unusual effect known cause.’ [Joyce 2863.]” on Insurance, sec. foregoing

Prom clear that the court intend- is injury or death, ed to hold hold that an and did act, an intentional regardless proof or death Vol. Travelers Insurance Co. performance mishap in the act which

mischance or of the opinion produced dis- result. The then cites and discussed of which will be cases, cusses numerous most point. later where deemed in App. 155 Mo. Assn.,

Beile Travelers’ Protective (St. 1911). Insured from dilation died Louis, drops of administering few to him of a heart, due to No preparatory operation fistula. to an chloroform mishap administering chloroform or inadvertence exactly physician is shown to have occurred. The did administering chloroform what he do in intended to Following Young v. it. did not overadminister supra, Railway un- the court held that Mail expected was an intentional act and unusual of finding jury sufficient that death to sustain of by presents a The case resulted quite in bar. situation to that the case at similar Merrick Travelers Insurance 189 S. W. v. (Kansas City, 1916). The Insured dentist. was a that he with evidence to show became infected tended pyorrhea germs present patient in A and died therefrom. pyorrhea infected with a who serious case of was coughed question face. The in case into insured’s acquired something the infection was whether so else apparently death. It was assumed that if death caused pyorrhea germs infection from thus resulted from by accidental the death was derived, means. The case point here. not in Fidelity App. Mut. Aid Assn., Summers Mo. 1900). City, (Kansas helper Insured was a holster’s shop. heavy railway lifting suddenly In a truck he gave am hurt.” He down and said “I died after. soon injury Judge by held that the was inflicted discussion Ellison means, but entered into no accidental subject nothing no cases. There is and cited show any thing occurred whether unforeseen lifting controversy of the truck. The in the main seemed resulting lifting by be hernia to whether was caused SUPREME OURT OF Caldwell v. Travelers Insurance Co. prior cannot, The thereto. case truck or had existed authority support plain- an said

therefore, be tiff’s contention. App. Hooper 166 Mo. Standard L. A. from,

(Kansas 1912). City, hemor- died cerebral Insured hemorrhage was rhage. question whether by of disease. caused the result accident or was gestae part a state- court the res held admissible car. street ment that he fell made deceased Judgment His arm defendant was bruised. on account of instructions. reversed erroneous apoplexy caused court held that if death accidental means. The case fall, the result of point car not in caused facts. If motion its certainly injured, deceased to fall and be accidental means. H. Anderson Mut. Ben. & A. 231 S. W. (Kansas City, 1921). admittedly Insured received finger. poison ensued. to his Blood question whether diabetes resulted was held jury. question therefrom for the No of accidental means was discussed. App. (St. C. Goodes v. Order U. 174 Mo. T., 1913). acci-

Louis, fell backward'off stool Insured few dent. bled at ear and and died He nose in a autopsy seriously moments. disclosed diseased con- question ditions. There no to the accidental as question means, sole whether accident disease caused death. insured’s App. Health Accident Mo.

Driskell & Ins. 117 (Kansas City, 1906). as the result Insured died alleged accidently scalding’ falling’ water into his ear, as petition. in trial demurrer court sustained a petition. peti appellate to the court held that the sufficiently alleged of violent tion death the result trial. and external means and remanded the case point The case not in here.

Yol. 305] OCTOBER TERM, 1924. Travelers Insurance Co. Casualty Paper Fidelity

Columbia Stock Co. v. (St. App. 1904). Co., 104 Mo. Louis, Plaintiff was employers’ protecting it liability policy, holder of an against employees liability to accidental on account of injury. employee against judgment An recovered indemnity insured, and con insured was sued on such policy appears tract. The to have indemnified against injuries accidentally loss from claims for suffer ed. The court reviews numerous cases reaches Young Railway same conclusion reached Mail App. authority 126 Mo. 325, and the case is therefore an tending support plaintiff’s contention. (St. Casualty App.

Johnson v. Mo. 1907). Louis, Insured met He with accidental fall. was found unconscious and soon died. Death resulted hemorrhage either from cerebral from traumatic- pneumonia. jury held that it was for decide whether death was caused the fall. If clearly by the fall, it was accidental means. The case point is not in here. App. City Greenlee v. Kansas Co., Mo. - (Kansas City, 1916). Insured fell in hath room questions

and died soon after. The were as to admis- sibility part of statements of the deceased as of the res gestae and whether the fall or disease caused death. The statement held admissible, and that evidence was sufficient to that death show occurred from rather than from disease. The case point.

Respondent’s Outside Cases Missouri. Respondent numerous other has cited jurisdictions question presented wherein the decid- ed whether death or resulted from passed means or from disease. All such with- cases are they out notice unless contain some acci- discussion of dental means or accidental result aas basis for upon policies of accident insurance. I cannot undertake to list such others, cases or deemed for one reason OF SUPREME COURT v. Travelers point. out- About half not to in of the

another be respondent by cited must side of be omitted Missouri every such reasons. for I will discussion discuss fairly may point I said to be ease which in and some point. in am confident are not T. Assn., Rowe v. U. Iowa, In C. overturning by the was killed of an sured automobile driving. he The defense was was death which exposure danger voluntary by driving caused law, in violation of which risks automobile were not by opinion policy. The holds that covered the state that, if is result of the rule ment an in by it then is not act, tentional accidental means should be that no distinction made broad; is on ac too jury held means.” It was count of “accidental produced by may an means find where unexpected, or unnatural unintended result occurs slip accident, evidence mischance in without producing the result. hard to It understand the act necessity of the announcement view facts in this opinion in the no There was the case. discussion rulings Supreme exactly contrary made Iowa Traveling Assn.; Men’s Feder Court Carnes v. Traveling Men’s Assn. and Assn.; Smouse will be which hereafter Assn., Lehman v. Accident no Payne on v. Fraternal case ruled ticed. Rowe where Iowa, Ins. Accident and the track, on the a train while widow was killed provided policy against permitted where to recover Payne voluntary danger. exposure held jury question for the and that case that exposure that the show on defendant to burden was relied Jenkins voluntary. on further case The Rowe Hawkeye which Iowa, 113, held that M.C. having swallowed fish bone death lodged was death in the intestines off result rather went case Jenkins takes no notice Feder or than the Vol. Insurance

Caldwell Co. previously the Car decided, but cases refers to Smouse collected. also nes The Rowe case case .definitions Traveling relies on Lickleider v. Men’s Iowa, injured through where insured died a 423, mishap taking off an automobile tire, which came.off suddenly causing case him to fall. In the Lickleider clearly mishap, there was the element of but court goes that further and means is accidental holds where unexpected, the act intentional but the result is is un usual or no unforeseen, takes notice of the Carnes, Smouse or Lehman cases. It Feder, noted, be how Supreme subsequently that the Iowa ever, Court took holding [See back in the Lickleider case. Lickleider its Traveling (Iowa) Ins. Co., Men’s N. W. 884.] holding by The final the court was that the death was due tire, mishap taking to a off the automobile The Rowe upon Hanley Fidelity & case also and relies cites Casualty Co., 805. There a Iowa, screwdriver used by slipped insured from the head screw and caused injury. brought mishap. This in the element of attempt was no to differentiate There between acciden by tal death and death accidental means. The Rowe case v. Travelers also on Bohaker Ins. relies Co., suffering typhoid Mass. where the insured while upon balcony fever went and in some manner fell about thirty feet. There was no evidence that the fall might by intentional and it well have been in leaning against railing, sured which later found broken. It will be seen from discussion of other harmony Iowa the Rowe case is out with number of cases in that and'it also state, seems that the support cases relied therein do not the rule an nounced.

Higgins Casualty (1917). Ill. 431 v. Midland by The insured suffered sunstroke, was covered policy. approved. The court an nounced the result of view an in policy tentional act is a accidental means. The result- OF SUPREME COURT v. Travelers Insurance Co. injury from sunstroke covered means and nothing’ suggest intentionally there dangerous exposure. subjected himself to The announce- unnecessary apparently on the therefore, facts ment, in the case. Maryland

Hood v. Mass. 223 employee glanders Insured’s contracted handling horses. Hood diseased was sued the em- judgment. paid judgment ployee He and suffered ’ employers liability policy defendant on and sued ground employ- permitted on the to recover the was bodily injury accidentally. disease was a ee’s suffered nothing employee about the condi- knew diseased intentionally did not horses and, therefore, tion of the in that condition.. The case can handle them distinguished. thus Casualty Co. 186 Griffis, Ind. 126 United States poisonous (1916). eating from tainted or Insured died Recovery policy permitted. under the mushrooms. was recognized the rule that the death must The court have rather than the accidental means un been expected intentional act to authorize result of an re any covery. no evidence that deceased There had was poisonous eating mushrooms. It of held intention eating poisonous of was accidental. that the mushrooms (Practically all of the where facts show that eating poisonous injury food death or resulted from quality taking ignorance poisonous its or medicine injury to be like cases hold death means). (C. Fed. Melick, Insurance Travelers Co. v. accidentally A.) (1894). shot himself in C. insured spasm and in a tetanic he Tetanus ensued the foot. scalpel. The defense was suicide. stabbed himself with spasm or the either the tetanic There was evidence that scalpel have cause sufficed cut made with the would approximate of death cause Held, death. unexpected jury. question re There nowas in the case. an sult of intentional act discussed Yol y. Travelers Insurance Co. America, v. Modern

Sullivan Brotherhood of (1911). unintentionally splashed Michigan, Insured eye doing family washing. in her water while She eye. infection her Gonorrheal set and she rubbed Recovery eye. her was sustained. Held, lost to accident and not to disease. It was due splashing act of also held that the water' was opinion recog apparently designed intentional. The unexpected result an rule that inten nized the if not constitute accidental means, and, tional act does authority value it is an for de here, is of as the case contention. fendant’s Corp., App. Ocean A. G. 25 D. C.

Patterson v. osteopathic physician. (1905). an He patient. treating He died while back strained induced liver, inflammation of strain. There was no was authorized. show-

held that ing to whether mishap or from some act or resulted intentional just the strain it uncertain how case

slip leaves of that feature. The no discussion There is was caused. may only be considered because referred case any ruling made. point but not for facts, on its Fed. 985 Insurance Nax v. following poisoning a self-in from blood died Insured trimming In lines a corn. six cut while knife flicted rely citing accidental, was the court held 405. There 85 Fed. ing Smith, T. A. v. on Western C. inten result of an of the accidental no discussion abra an suffered case insured In Smith tional act. wearing It was there from new shoes. skin sion and therefore unintentional abrasion was that the held question have been to It seem would accidental. enough deeply jury cut to to Nax intended whether mishap. plainly a injure if it was . and, not, toe his App. Casualty Fidelity Div. Gallagher Co., v. opinion. (N. (Affirmed Y.) without 221 N. Y. going 1914). act His from sunstroke. died Insured unusual result was The intentional. the sun into SUPREME OF COURT v. Travelers Insurance Co. unexpected. policy The covered death from sun- stroke suffered accidental means. The case lends support plaintiff’s some contention. However, the apparently recognized general court rule an resulting unexpected injury intentional act does not constitute accidental means. (Cal.)

Horton v. 187 Pac. Insurance (1920). poisoning. Insured died from blood The germs upon infection was received dental instru- germs presence unsuspected. ments. The thereon was unskillfully work, therefore, either done or the unintentionally inoculation was received. The wa,s upheld. recognized The court the soundness of the rule announced Rock v. Travelers Ins. Co., 156 Pac. (Cal.) will 1029, which be hereafter discussed, but held that the infection was unintentional and therefore the really death was accidental means. This case authority for defendant’s contention. Fitzgerald, Aetna Ind. 317 Life

(1905). sleep Insured went to his with head hand unintentionally injured periostitis. causing it, entirely element of volition was absent and the case can distiguished thus be from one where the re- sult of the intentional act is involved. Collins Co., Mass. Con- Aft-, rupture.

cededly accidentally the insured suffered operation er an therefor he died for some obscure rea- growing son, out of the administration of ether. It was held that death resulted from accidental means. Etheri- operation operation zation an incident of the unsuccessful, necessary, although treatment of rupture clearly which was Hamlyn (Eng- Q. Crown Insurance 1 B. D. 750 1893). stooped pick up Insured a marble lish, in- jured his knee. held must means violent and accidental and not the result. case tends support plaintiff’s defendant’s rather than conten- tion.

Yol. v. Travelers Insurance Co. Traveling Lewis Iowa State Men’s Fed. opened pimple (1918). pin, Insured with his tie Death infected. resulted. which was was held that recognized the rule that it means and not the the means result which must be is accidental. Judge, District said: “If resulted Wade, pin proof pin from the there no alone, and that the was by the accidental result would not be infected, covered policy; clearly something hut the deceased used

this only used, not intend use. He not which did he pin poisoned pin. pin, an infected but he used This —a it not, could the nature infection was such perhaps things, him be discovered without a misero- my scopic investigation. To the means mind were clear- ly A man who infected food, accidental. eats without doing something knowledge he did infection, not its eating* voluntary, The do. food is but intend to poison goes eating is not. The housewife it, her bakes bread, the flour it. bin, kneads serves it It is that the bin Those eat die. found contains, who only arsenic. The unfortunates but volun- flour, not tarily composed of flour and arsenic. bread,

ate the causing no accidental. see death, is distinction I ‘means,’ principle bar the case at between numerous by ptomaine poisoning, and other illustrated cases Judge previous- had infection.” of unintentional Wade may great ly weight taken as said: “It be settled language of this kind under in a that, of authorities policy, be that the result shall acciden- it not sufficient as well accidental, must as the but ‘means’ tal, clearly authority case is result.” The defendant’s contention. Schmaltz, & Accident Ins. Co. Ark. 588 Life cylinder removing head dropped it, then a bar and

had stuck. He took removed cylinder keep caught bar head from- the falling. ruptured and died. a blood vessel He thus jury that the trial instructed the court SUPREME OF COURT v. Travelers Insurance Co. they accidental, must Tbe and that must result, find the was accidental before means was authorized. jury the the was: “If find from evidence Instruction cylinder removing in the of the from en that, head .the carrying gine, putting it off and it down, and deceased manner intended the he to and used act, acted in the he use manner he means intended to to intended doing ruptured, a and in blood vessel them, was use so injury you are not the then told that was result of plaintiff recover.” and cannot means, accidental Supreme approved discussing In Court instruction. court said: the evidence “At injured perform attempting he he was the time way, but there is act in the usual reason to the same prevent that he and in an this, believe failed effort falling made sudden, head from un unusual, he some body, expected involuntary and movement of which he died.” The from which case is largely on States Accident Mutual Assn. United ruled authority Barry, defend 100. It v. U. S. ant’s contention. Alexander,

Atlantic Assn. Ga. 709 Accident sledge (1898). using heavy in black- Insured was slanting rupture smithing. striking blow a occurred, In produced case decided on au- death. which Barry, supra. thority Mutual Accident Assn. v. of U. S. means evidence of accidental The court found there distinguished and accidental result, said, at ‘‘ together, Taking page facts the fact of his all the 712: many previous good fact had that he health, times pain after the the sudden hammer, used the blow before appeared, jury which other hammer, facts preceded properly act in- infer that the could unexpected, jury something, unforeseen, unusual, directly immediately resulted produced by external, therefore act, from such and was sup- tends to means.” The case violent, port plaintiff’s. rather than contention defendant’s Vol. OCTOBER TERM, 1924.

Caldwell v. Travelers Insurance Co. Ludwig Minn. Accident Ins. Co., Preferred player. stealing a ball In sec he made a slide ond head first. The base, base awas immediately paving gave injury. He block. evidence of Appendicitis Recovery and death followed. author ground' mishap striking ized on the the base. The opinion purports to follow U. Mutual S. Accident Assn. plaintiff’s Barry, supra. support lends no con tention. National Budde v. 184 Iowa, Benefit (1918). carrying in Insured ashes a tub. He complained pain. task and of

finished his Some discol- oration of the abdomen was found.. He became ill and finally autopsy a kink in died. revealed the bowels physician and other resultant troubles. A testified: “It require slip, quick would nary than move, some other ordi- handling produce of a basket that condition.” injury that The court held the not have been could well Barry very vigorous and cites the case. A intentional by in the dissent The facts ease filed J. Salinger, language deciding than the used in rather case tend support plaintiff’s position in the ease at bar. Frommelt Travelers Insurance Minn. 66 (1921). from a stricture of Insured suffered the urethra. passed physician A a catheter metal the urethra, causing ensued, laceration. Infection followed death. operation gave no relief. court An said: “As basis opinion probable part in he that it was for his indicated developed symptoms facts from the infection very early, there were indications that set operation in the afternoon, set in and, had before greater probability infection from a lacera- much place a catheter at a where there within, tion caused by' opera- cleansing than an sterilization, been no had surgeon, experienced a tion knife with hand cleansing place sterilization a were and at where finding easy. of acci- think the evidence sustains We By the court doubt- dental death.” “accidental death” SUPREME OF COURT V. Travelers Insurance Co. by accidental means. All the facts indi- less meant death unexpected urethra. and accidental to the cate an (1918). Elsey Fidelity & Ind. policy a sunstroke. The covered The insured suffered means. He entered a ear sunstroke street the car The car down while sat shade. deprived then out into the sun and moved insured was expos The defendant contended of the shade. through casualty been have to by must sunstroke ure voluntary of the insured. act was held recovery, entitled to but the court that the insured was opinion page are of that the better 450: “We at said, weight authority points reasoning holds, and the out, precedes if in the act which that, true test something’ though injury, un unusual, an intentional act, produces the in occurs which foreseen, and precedes jury, in the act which but, if accidental; it is expected something foreseen occurs usual, ’’ accidentally injury, produces it is not effected. Corp., Y. A. & 224 N. Lewis v. Ocean G. by puncture infection, Insured died opinion apparently pimple. considered unex equivalent pected as to unforeseen result accidental puncture held to fact of was be and the mere means support some to the con and the case lends an accident plaintiff However, in the case at bar. in tention of puncture germs by of the could reason troduction of well though regarded even been have puncture intentional. was Lewis, 257 B. Accident Assn. v. Fed. Interstate M. pimple A.) (1919.) punctured a (C. Insured C. with pin. infected and he It became died. an scarf infected Recovery that there was no It held was sustained. was proof of infected condition knew of the ‘that insured pin injury was inflicted therefore that scarf support plain no lends means. The case contention. tiff’s

Yol. 1924. v. Travelers Insurance Co. Casualty Fidelity Miller (1899). Co., 97 Fed. 836 inWhile a weakened condition, the insured ate food con- pointed taining hard, and resistant substances and in- injuries ternal from ensued, died. It he was not shown that the accidentally eaten food was or eaten in ignorance injurious qualities thereof. No cases are but the cited, have case seems been decided theory of an accidental result and not accidental support plaintiff’s means, and to that extent lends contention. Hornby Ins. (Neb.) v. State N. W. Life injured probably by

Insured thumb contact awith sand burr. He was undertaker embalming and did possibly way. in became infected that His arm be- came inflamed and he died. It held in that the ab- showing sence of a intentionally the wound was presumption inflicted, the of accident followed. The case authority supporting plaintiff. cannot be to be an said Independent Order Puritans Lockhart, 212 S. (Texas) eye injured W. Insured’s blowing wind dust it. The court seems to have as- blowing sumed that the of dust not an accident, but that the from the “unusual followed effect of the known cause,” the accidental means deter- not from mined the effect and the cause. No cases are cited and there no discussion of what constitutes ac- may cidental It that in at Texas, the season of year blowing when the occurred, dust eye persons living* do accidental, but, one’s is not quieter country, portions scarcely conclusion seems to be sound. Supp.

Bailey (Af- 40 N. Y. Int. opinion, 1896). firmed, 158 N. Y. without in- injured hypodermic by a needle. sured court suggested Barry move- cited case. that the may go deeper ment have the needle to horse sitting buggy in a at than intended. He he was time. intentionally using hypodermic He was needle. It 644 SUPREME OF COURT v. Travelers jury was held that there was evidence which might find the resulted from accidental means. There is not sufficient accidental means discussion authority plaintiff. satisfactory the case for make Casualty Gallagher Fidelity App. Div. (N. 1914). (Affirmed, Y.) N. Y. in 664, plaintiff that the It held sured suffered sunstroke. as for an was entitled to (Ok.) 453 Clark, 173Pac. Continental Co. (1918). It a result of Insured died as sunstroke. since de- held the death intentionally expose knowingly him- did not ceased regard to without conse- self to the heat of the sun quences. “cause” meant “means” and held that authority anything, thing. case is an the same If (cid:127) in at bar. contention case defendant’s Les of Interstate Business Men’s Assn. v. cases 1919); (C. Ins. State Co. v. ter, Fed. 225 C. A., Life (C. 1920); and Great 269 Fed. 93 C. South Allison, A. (Ok.) ern Pac. all Churchwell, Ins. Co. v. are in killed first battle, the insured cases where being the. last two in in Colorado, with strikers Europe. in were late Is eases sus war these recoveries except provisions policies in the There tained. were no military service, ing injury forbidding and it in battle or in that, was held knowingly case while substance each yet danger, aware of the

entered the battle in their the fact their marks bodies found bullets are distin facts so accidental. these On plaintiff’s guished authority for con as to no constitute tention. by re- cited the cases all

The above constitute point sufficiently spondent, notice. which we deem many widely referred to There another cited case plaintiff the case cite. It-is the cases failed Ins. Mut. Wash. Pac. Horsfall Life heavy carrying assisting, in The insured was Vol. Insurance

Caldwell Co. to stoop position in an unnatural iron bar. He had to complained, immediately and lift He end of the bar. heart. dilated from became sick and soon after died in- result of There of no discussion slip any or evidence tentional mishap. nor was there act, question, there no discussion of While been apparently point has in on and facts, its case is plain- conformity holding frequently to cited in in contention in this case. tiff’s Barry, 131 U. S.

Accident Assn. v. been relies this It has has cited and case. Plaintiff ques authority frequently cited on each side as considering’. S. the H. we are it is a decision tion As fully. Supreme in discussed The it should be Court, physician. came He and others sured in that case was a jumped platform or building four from a out of a height. jumped landed in last five feet jar. heavily once became and with a He at on his feet days very nine ill. His death followed afterward and could which to a stricture of the duodenum, found due jar. jumping* have been caused platform off intentional. The trial court instructed the you Barry jury jumped “And instruct that Dr. that, I if platform alighted ground from the on the way nothing unexpect do, unforeseen, he intended to involuntary changing affecting or or occurred, ed body expected movement of his as or downward he would made, naturally expect movement caus such a to or ground any ing way or him to strike the different position anticipated would which he from that or any naturally anticipate, injury resulting then (But through any effected if, jumping ground, alighting or on the occurred, there any any involuntary from move cause, unforeseen or body, brought or turn, strain of ment, about any alleged injury, or if there occurred unforeseen which, changed circumstance with or interfered expected downward movement as he make, OP SUPREME COURT Co. v. Travelers Insurance circumstances, expect under such would be natural alight ground in a different and as caused him expect- way position intended or which he thereby would then the resulted, ed, means).” be attributable to approved this Supreme Court States United theory that there was evidence on the instruction part mishap on the of the or some miscalculation platform left and the time his he the between the time “The ground. The that: the court said feet struck properly jumping the off them that instructed court any injury, by platform the the which if the was means question was the causeá; that sustained, was was anything in- accidental, unforeseen, there was whether unexpected, jumping, voluntary, in the act of from the platform alighted until on the left the he time deceased ground; the the term ‘accidental’ the used in ordinary, popular meaning policy sense, in its as by ‘happening* unexpectedly taking place; not chance; things; according expect- course to usual not as ordinary ed;’ a result is that, if follows from employed, voluntarily in a not unusual un- expected ivay, by it cannot be called a result effected precedes means; if, but the act accidental which injury, something unexpected, unforseen, unusual injury, produces injury occurs, then has (Italics ours.) accidental resulted means.” language unable I am to understand how th'e used jury given by to in the instruction trial court the. by Supreme approved, and Court of the United States lending any support can be construed as to the doctrine unexpected is that'where in- of an act, tentional is Supreme Court

United States defined what is meant undoubtedly means and definition is apparently courts correct, but have taken that definition applied it to the result, not to the means which produces only the result. case is not not an author- Yol. v. Travelers strongest my judgment,

ity plaintiff, but, for authority contention. defendant’s sort of for and Relied Cited Gases Defendant. Fidelity 193 Ala. Stokely

In re- performed (1915) operation to on insured an, apparently appendicitis. closed and The wound lieve complications favorably. progressed There were no days, went into fit five when insured four or- re-opened vomiting and insured died. the wound rupture It that the stitches held causing but a failure of death, accident Avas independent prevent death from other to taken means quite to the case at bar. facts It similar its causes. Assurance Conn. Southard jumped without off train The insured there- someone. He another station see hurried only time to catch train ran a short after had Avay rupture part the first station. A back Nothing appeared. move- unusual or in his jump- running' held shown. was that the ments ing injury running intentional and that the acts, were and mishap, no and therefore there could occurred recovery. be no (Cal.) Ins. Pac. Travelers 156 1029

Rock v. (1916) case died from . The this acute dila- by part caused overexertion on heart, tion his carrying one end of the burial casket down stairs at a mishap, slip or mischance shoAvn No was to funeral. lifting heavy pos- any more than the occurred have holding sibly end of the casket in an un- of insured’s voluntary, position. recovery although A was natural, ably opinion between differentiates acci- denied. by accidental means. and death death dental (Cal. Pac. Co., 178 Bennetts v. Occidental Ins. Life lifting heavy App.) (1919). after a Insured died soon mishap pipe. event was to or shown No iron to be to was held not due acci The death have occurred. supra. following Ins. Rock v. dental SUPREME OF COURT v. Travelers Railway Olinsky (Cal.) Mail 189 Pac. Assn., v. (1920). bathing attempted went Insured swim causing strong against a current, strenuous exertion. began hemorrhages mouth He to bleed at the and several (cid:127) suffering followed. He had been ensued and death recovery, tuberculosis. It was held there be no could carefully opinion between differentiated acciden by and death accidental means. tal death (1895). Assn., Cobb Accident 96 Ga. 818 Insured heavy carrying baggage, eyesight and his some injured overheating by strain that work. No any mishap slip sort was shown. have been to accidental

held not to due means and re covery was denied. (Ind. App.) Accident 85 N. E. Assn.,

Schmid (1908). lived in Indiana The insured where the altitude relatively Springs, low. He went Colorado Colo- approximately in an altitude of and, six rado, thousand flight grips up long heavy carried his feet, stairs The exertion in'such to the Antlers Hotel. rarefied at- recovery mosphere A caused his death. denied. that where court held occurred as result of produced by intentional it is not acts, means. subject extensively clearly on the were The cases reviewed. Assn.,

Husbands v. Accident N. E. (Ind. Sup.) (1921). directly death was Insured’s hemorrhage shaking due exertion in approves in a furnace. The case down the ashes supra, and held there could be no case, Schmid carefully accident, as for differentiated between death accident and death Traveling Men’s

Carnes Iowa, 281 morphine, held that insured took where knowing taking how much he and was died as result produced by thereof, death was though not know that means, even he did such amount of morphine produce recovery would death. was A denied Vol.

Caldwell v. Travelers Insurance Co. distinguished and the court between an accidental death death and accidental cause. Traveling

Feder v. Men’s Assn., 107 Iowa, 538 (1899). The insured tubercular. was His death was by hemorrhage resulting ruptured artery. from a He stood a chair on and reached over and closed a win- hemorrhage. and act induced the dow this There was any slip unexpected no evidence of or fall or strain in closing Recovery or that his window he lost balance. was and court made the same denied, distinction supra. made in the Carnes case, Traveling

Smouse Men’s Assn., 118 Iowa, 436 (1902). pneumonia had been ill with weak, apparently recovering, very was but still was Some called to him and see wife friends his him awakened told him of their visit. He made a sudden and stren nightshirt by pulling uous effort to remove his it over rupture way his head and in some sustained of a blood vessel died. The court held if the strenuous nightshirt effort to remove was intentional act, recovery. held there could be that the no was case jury question on should to the be submitted whether intentionally made, the effort was there said could for the accidental of an be no intentional act. Iowa,

Lehman Assn., Accident In- bowling engaged engaged and while was so sured appendicitis ensued and strained side. Soreness Recovery developed. denied and it found to have unexpected result of held that means which inflicted the act; an intentional not the result. There accidental, must be part slip falling movement no the strain. he received insured at the time above cited were discussed some The four last cases my T. Rowe v. U. what in C. consideration case that the Rowe shown Iowa, wherein harmony considered well Iowa. out of other with 650 SUPREME OP COURT v. Travelers

Caldwell Casualty Salinger Fidelity Ky. 369 Co., v. 178 (1917). sight through, plac- Insured lost Ms exertion high ing a shelf. exertion inten- boxes His was undergone, tionally and it held that the was was by not accidental means. caused (Miss. Sup.) Co. So. Malone, U. S. v. from an infection The insured died received rubbing from a towel while his foot. It was held that accidental, act there intentional, was and. liis recovery because death not caused be no his could by been noted cases have where Other by towel or other instrument the infection was received recovery to have infected sustained. not known been (1920), (Mont.) 993 Tuttle 190 Pac. v. Ins. Life party hunting a a of went The insured was membér by not seen himself and was in the 'mountains off long Later he was found time. dead. heard from for a cause of There was no evidence whatever timely notice of no death. The death. There was also except opin- that the value, little citation therefore is of recognizes between accidental distinction death ion and death accidental means. Clerks, Railway N. Mail Association Fane v. ruptured'while Supp. 222 (1921). insured was

Y. slip heavy lurch of lifting mail. No the train, sack only mishap unusual to have occurred. shown a' thing resulted in strain which occurred was lifting rupture. the mail that the act sack It was held only the result intentional and that recovery. could be no This case there and, therefore, Railway Young quite Mail in its facts similar Appeals, supra, decided the St. Louis Court of opposite exactly conclusion. which reached Supp. Appel N. Ætna Ins. Y. Life (Affirmed 514-1903). Y. The insured died 180 N. bicycle. riding appendicitis, An caused intentional^ performed, operation but died to relieve him was he days appendix been found to have later. The three Yol. 305] OCTOBEE TEEM, Travelers Insurance Co. ruptured showing and to have been diseased. No mishap, made unusual fall or shock, and it was evidence that the use of the muscles could have unexpect- rupture. No allowed for ed result of an intentional act. Carpenters, App.

Niskern v. Div. Brotherhood of (N. Y.) (1904). disability 364 Insured suffered heavy lifting exertion in intentional timber. It was a disability by held that the was policy. policy However, not an accident was App. Barnstead v. Commercial 204 Travelers (N. Y.) (1923). Div. 473 Insured after administra- died nitrous, gas pre- tion of oxide for tooth extraction. His condition such vious that he was sudden was liable to gas skillfully death. The his -was administered at request. by that death Held, not caused was though death was not the usual result use of the gas. of such is one This of few cited cases at is all to the case bar similar at on the facts. (1914). Johnson, v.Co. 91 Ohio St. disability suffered insured from dilation of due to a shock from

heart, a cold bath. intend- Insured just slip do ed to what he did do. There no or fall was or mischance shown have occurred. It was held recovery there could be no for the result of an intentional act.

Pledger v. Business Men’s Accident Assn., 197 S. (Tex.) (1911). ruptured W. heart insured his lifting: cotton bales. It was held that if by was caused there act, intentional re- could no covery, limiting but the court held that re- clause covery among to death accidental means was hidden policy obscure conditions on the back permitted ambiguous, recovery ground on the distinguished of accidental death as from death accidental means.

Westmoreland v. Accident Ins. Fed. (1896). suffering pain The insured chloro- and had OF SUPREME COURT Insurance Co. Travelers or pain choked to relieve

form administered coming influence of under the smothered before because here, no value is of chloroform. The citation excepted by the cause death was known of off policy went denial terms and the of of point. on that (C. C. Selden, 78 Fed. up (1897).

A.) hillside and Insured ran a Apoplexy by pains in and died. head attacked superinduced the cause intentional exertion was any stumbling falling mis There death. no hap. case citation because here, no value point there no evidence went off evidence of accident and conclusive disease. (C.

Shanberg Fidelity Casualty C. 158 Fed. widely A.) had This case. The cited degeneration fatty heart heart, and suffered rupture intentionally from over-exertion undertaken carry eighty-six weighing pounds. helping a door about slip, No or fall shown to have occurred. wrench was ground that no was held there could be the rupture not heart and result the accidental means which death effected. (N. Hastings Co.) Ins. Fed. v. Travelers in- Dak.) (1911). heart, dilation of the Insured died from lowering voluntary raising by a effort in duced sitting position Morris himself his arms from a in a strength. This chair. done in an exhibition of his unexpected Nothing physical happened during or unusual except the result

exercise, itself, and it recovery. be held that there could no (C. Railway C. Mail 269 Fed. Whitehead v. moving A.) (1920). voluntarily g*ot Insured off a place bridge train and railroad went below a over moving. injured train which the He was in course movement. The not such are elaborated facts appear citation does of value. n Yol.

Caldwell v. Travelers Insurance Co. Clidero v. Scottish Accident Ins. 29 Scottish Rep. widely Law cited. This case been has putting stockings, leaning Insured was on his for over purpose, something give way. when he felt His stoppage displaced, causing colon was with distension majority of the heart. of the court found displacement unexpected any was not due or strain wrench, but an intentional act and there recovery. could be no opinions

The above constitute the court de- cited McCarthy fendant. case of Travelers Ins.

15 Fed. Cases, No. in 8682, decided been in has cited number cases we have discussed. There the ruptured lung. died from a blood vessel in The' his intentionally evidence tended to show that he was swinging Indian and one clubs clubs struck stove caused an strain. law announced in was declared jury instruction to the the Federal Circuit in Court Wisconsin. Pari of the very they clearly are

instructions set forth because express governing point controversy law here. page quote I 1255, as follows: you “I instruct voluntarily that if the deceased took hands for clubs exercise, and used them for way precisely exercise in such as he intended to anything occurring without do, to interfere with his intended and usual movements such exercise; that voluntarily way if he ordinary is, used them in the taking such without any exercise, the occurrence of un- interrupting interfering usual circumstance with causing use, an unforeseen, accidental or invol- untary body, movement of the and in such use of the rupture clubs there occurred the of a blood vessel and consequent injury as I do not think claimed, it could injury then be said that the which the means was engaged effected were accidental. exercise there if But, while in such any unforeseen, occurred accidental or involuntary body movement of the of the deceased, OF SUPREME COURT v. Travelers brought the nse of the in connection with clubs,

which, injury; any if there or, occurred unforeseen about the any unexpected or circumstance which interfered with or usual course of and there exercise, obstructed the involuntary produced thereby an strain movement, was wrenching’, by injury occa- which was means spirit within the that would an accident of this sioned, policy; be by injury the means which the is, that effected accidental.” would such case be other which do not I will also notice three I respondent. appellant in the find cited briefs either appellant’s support They strongly to contention. tend Ramsey Casualty Fidelity & S. W. (Tenn. 1920). Sup. petition A demurrer to the Ct. charge by failed trial court. Petition sustained by accidental means. In that was caused and bacteria entered the tooth extracted sured had poisoning. resulting in a attack of blood fatal wound, said: J., Hall, allege pulled not that the tooth “The bill does allege any happened nor accident accident, does pulled. being The means tooth which while the injured intentionally gum purposely were applied. the inevitable result of The insured knew pulling to break down and lacerate the tooth would pull- gum followed the ing tissue. It was the gum of the tissue that and the laceration of the tooth n .vas unexpected, unforeseen. There unlooked for, allegations of the bill that inference from can be no pulling any in connection with accident there was gum injury, resulted to tooth. ordinary and pulling natural tooth, operation. result of such Fidelity in Stone v. court

“It was held this R. L. A. 252, Tenn. S. W. 673, general rule that the 1917A, 86, Ann. Cas. 1916D, produced by accidental means that an policy, meaning the in- where accident within the of an Vol.

Caldwell V. Insurance Co. jury the natural result of an act, is in acts, which intentionally engages. the insured In that case this court, speaking Special Justice Fancher, said: “ may person ‘A do certain the of acts result which produces consequences resulting is in unforeseen what yet an it not accident; termed does come within the terms policy against of contract. The does not insure this an injury may by voluntary, be caused a natural, ordi- nary exactly executed movement, was intended. “ to determine the ‘Therefore, matter, we look not merely, producing the but to the means the re- sult. It is sufficient that the not be unusual and unexpected, but cause itself must the have been unex- pected and accidental.’ (the insured)

“In that case Stone had attended a ground game day damp on a cool the football when resulting lumbago, and contracted a cold, and who, debility resulting treatment after medical and from lying purgative a he had and while taken, which in bed, paper brought, for it, a reached it had raised sud strong pressure denly when his head, above blood destroying rupture sight of retina, caused a eye. “ case further said: one In that the.court suddenly get hand ‘The movement of the paper exactly as intended. executed It was sim- ple ordinary rushing- movement. The blood pressure, rupturing retina, with excessive there- by natural means. the result fore While caused producing that result were not the causes ac- foreseen, in line cidental. It is well with above cited majority adopt. sustaining we This rule, rule interpretation of the contract.’ reasonable affords Joyce, work on Insurance, “Mr. his recent states may it ‘In noted rule connection thus: this may, language policy warrant a held, dis- and accidental tinction between accidental death against bodily death insurance Thus case of accidental, external, and visi- violent, OF SUPREME COURT v. Travelers person may certain said: do tbe court ble “A may produce con- unforseen acts result which acts commonly may produce sequences, called what exactly means are but the what the death, prepared use, did use, intended to man but the result accidental, means not were use. The clearly might distinction more accidental.” This is be qualify apparent policy intended to the uses words where proximate and as to cause, the rule remote or extend ‘‘ provision from the effects of is shall die such where the injury. ’’ immediately not be caused need Here the death injury immediately yet injury, if the the natural as a con- the death ensued accident, and the injury, sequence then the assurer lia- the is or effect of a is also made be- an case distinction in Iowa ble. So result, an accidental cause be- accidental and an tween pay agreement policy in amount case as- to the an tween in death, accidental and un- meet with sured should dertaking pay death amount case assured’s is said produced by words, In other the re- anticipated, may intended nor and have been sult not may not have been foreseen. it could been such that have person suffering voluntary the act of and intentional The may unanticipated been the immediate have Nothing may have been done or result. cause of had not foreseen and occurred which assured have resulting consequence except planned, injury and the again, the result follows assured’s therefrom, and, which may may but thereof, usual result have been the act not unexpected not be and still acci- and have been unusual produced act which as where dental, voluntary. applies where the The above result was provides death, event of but policy for bodily injuries effected only from death results where solely by means. The external, violent, injury only, 'injury cause the means which policy an accident clause of are referred to itself, providing only liability attach shall that the insurer’s Yol. v. Travelers Insurance Co. “external, violent acci-

when the ’ ” dental means.” quotes opinion from then cites numerous affirmed the action of discussed, and we have think, concluded as follows: “We ac- court, trial authority, great weight cording the rule is not sufficient accidental. must he the means followed the means was acci- illness or death gum, case the from In the instant dental. poison natural was the result of resulted, blood which pulling the insured knew and one would tooth, inevitable.” (Cir. Maryland Casualty 149 Fed. 198

Herdic v. 1906). App., death from Insured’s resulted 3rd Cir. Ct. operation ap- surgical septicaemia ensuing upon sustaining pendicitis. the trial court action of petition of claim statement to the demurrer resulting sep- policy covered death affirmed. policy not cover that the did held but the court ticaemia, by means. No cases death caused such unless upon ruling a construction of based The were cited. alleged petition policy defendant itself. The * against in the $5000 insure Carl Herdic sum did evidently charge septicaemia” did not from and death septicaemia that such

means. (Ore. Pac. Ins.

Kendall grant- appealed Sup. 1918). an order from Plaintiff Ct. affirmed. ing The The order was trial. defendant a new by requested following de- instructions held the court given: have been fendant should ‘‘ plaintiff directed the jury that if instructed ingrowing from his chin, hairs to barber remove under in- proceeded the hair remove the barber and plaintiff this recover plaintiff, cannot structions unskillfully though barber was of the even the work case, plaintiff neither the results were done and anticipated. nor barber SUPREME COURT OF Travelers Insurance Co. plaintiff’s

“If the abrasion of chin was due to the endeavoring intentional act of the barber in to remove plaintiff ingrowing hair thereon, cannot recover, and your verdict be for should the defendant.”

The court then said: merely note that the

“We defendant not insure does against although they might injuries, constitute an un- expected damage, anticipated effect. whether happened through not as a must have result, accidental, ingre- and external All violent, three of these subsequent form must unite to the cause of the dients hurt before there can be a under the admitted terms by-laws laid in the down of the constitution defend- leg might runaway ant. coming suddenly A broken man’s team upon might him from behind. He rea- expect sonably to be confined to his for bed some weeks, yet the cause fracture would be accidental. might purposely On the other he inflict hand, him- slight pin ordinarily pass self scratch which would septicaemia might unexpected- ensue unnoticed amputation injured ly part might become neces- sary, yet the scratch not be In accidental. would other policy liability under such a as this the words, must be consequences. rather than determined causes may “It be conceded inflicted stop was external. cannot tweezers We barber’s weigh degree haggle about the violence involved. question to be determined is whether the cause of the injury and whether the accidental, instructions asked given. have been . . . should impossible jury might consider that was

“The operation perform required making the without some growing hair skin incision of the so as to reach un- and that on that account the barber intention- derneath, ally, implied plain- least, at of consent, and with made the cut which afterwards tiff, became infected. not an unwarranted conclusion This would be from the testimony. plaintiff’s therefore, own If, wound was Yol, v. Travelers Insurance Co. intentionally, would not come within the mean-

made Consequently means.’ ing ‘.accidental term given have been instructions should sixth fifth and jury.” approvingly cited some of the then cases

The court unexpected where it was held that the have discussed we act not constitute intentional does accidental of an result have the text-writers announced the rule of Some produce means are those which effects that accidental probable consequences. natural and their are not which Cooley’s page on the Law of Insurance, In 4 Briefs is not “An effect which the natural said: or it is 3156, produced consequence probable of the means which it, ordinarily follow does and cannot which an effect anticipated reasonably use of such means, an be produce not intend to actor did which the effect design charged produc- with the he cannot produced ing, means.” accidental This announce- many of the cases have I based ment is discussed. appears between cause to be confusion result. There acceptance alleged of the accidental rule involves equivalent accidental cause. as the result subject on the of the various texts would review A largely digests they are mere since little value be of discussed. herein injury or death is rule, indicated, above As produced is un- means when largely unexpected seems to be unforeseen, usual, misconception the case of U. S. Mutual built Barry, above 131 U. discussed. S. Assn. Accident lays clearly rule contended for down That case ‘‘ discussing. bar. In in the case at defendant correctly said that most means” Mr. Justice Blatchford causing platform jumping the means off the injury jury question to the submitted and that the anything accidental, unforeseen, there occurred whether jumping, involuntary act in such SUPREME OP COURT Caldwell v. Travelers Insurance Co. produced injury, in the means which the from the

is, platform alighted upon left the until he time deceased Dr, pccurred alight- ground. Barry That when the clearly ground the ed enough result. the was not unexpected,

that the' result was unforeseen or justice ordinary. The the learned then laid out of down proposition, which seems to me is decisive of this fully sustains defendant’s contention case here, ordinary if a result such as follows from is “that, employed, voluntarily unexpected in a not unusual or way, by it cannot be a result called effected accidental precedes injury, but that the act which means; if, something unexpected, unusual unforeseen, occurs which produces injury, injury through resulted then the has plainer? language accidental means.” be Could way” unexpected plainly words “in a not unusual or “employed” preceding modify the and not verb language possibly verb If be “follows.” could made plainer by saying where the it be would means which voluntarily employed in the usual causes expected way, resulting injury produced not is by though resulting injury even means is unexpected entirely and unforeseen. unusual, singular plural but in the form, in the “Means,” new sense defined construction, is Webster’s through Dictionary “that or which, International help tending something is attained; an end which, object agency measure; to an intermediate or desired; necessary co-agent; instrument.” condition or In policies sense the word “means” used in this only equivalent cause. case, Defendant insured against death or suffered upon plaintiff means or cause. The burden show Assuming an accidental death. cause of insured’s operation voluntarily insured’s death was caused admittedly performed undertaken and skillful plaintiff something* manner, unusua] must show that unforeseen, during and unintended occurred Yol. Insurance Co. something operation progress and that this enough that there It is death. insured’s

suspicion, speculation some- possibility guess, during thing unexpected, or unforseen occurred unusual operation. prove satis- as fact to the the must it She policies re- jury, must be faction else in suit the garded not insurance as life and as accident restricted policies. duty upon that rested to No defendant show through Plaintiff insured did die accidental means. not proof that die must offer he did substantial proof, failing offer cannot accidental means and to in- permitted accident under insured’s to recover be beyond policies. plaintiff surance clear cavil that It is slightest proof anything unforeseen, not that offered operation while the unusual being occurred proof tending performed only She offered has unexpected re- unforeseen, to show that an unusual and apparently performance of an neces- sult followed sary surgical operation request at undertaken of insured skillfully performed. entitled is therefore not She judgment recover should be reversed. to below contrary those to above outlined are views Railway appeals oung announced the courts of in Y App. Pro Travelers’ 325; Mail 126 Mo. Beile v. Assn., Paper App. tective Columbia 629, Mo. Fidelity Casualty App. Stock & 104 Mo. Co. v. Fidelity suggestion re Eicks cently reported Mo. decided Division One and regard 1029, S. W. which I as matter harmony actual decision in that also out of with case, foregoing cases views I have above outlined. think other should be overruled. all the I appeals clearly court and the distin this courts of are guishable their facts. demurrer

Defendant also contends its to con- because the evidence should have been sustained died clusion as a fact as a SUPREME COURT OF Caldwell v. Travelers Insurance Co.

operation only reached for the hernias can inference; upon mounting inference Inference say: inferred that It must first be Upon Inference. have conceded bowel, obstruction of the brought about of death, cause been the immediate artery, must then it in the mesenteric a thrombus by the be further inferred that thrombus judgment this operation. can Before the be affirmed against In defendant. contention must be resolved necessary at have above outlined I have taken and view unnecessary pass length, but it unusual becomes and will not notice further than to this contention I presence question in the record before us.. state the an additional abstract of Plaintiff has filed requiring showing court in record the action of trial her to elect between the first third counts _ upon upon ^le the one hand Compelled Election.Petition upon the thereof second and fourth counts involuntary upon the other election and her to stand second and fourth counts. Such additional abstract exception plaintiff’s duly shows that saved exceptions. term it be sufficient bill of If assumed requiring see election, trial court erred such we alleged way no to correct error defendant’s such appeal appeal. requir Plaintiff did not from the order ing her to elect between as counts. It, therefore, unnecessary contention, to consider becomes defendant’s properly required made in brief, its that the trial court such election as between first and third counts and they alleged up the second and fourth counts because set inconsistent claims. judgment

For the heretofore stated, reasons be- apparent low reversed because and, conflict between opinion Fidelity this Eicks Mo. decided Division the cause One, is ordered transferred to in Banc. All Court concur. opinion foregoing

PER of David CURIAM:—The adopted opinion J., E. of Court in Banc. Blair, except sitting-, All concur Blair, James T. J., J., Walker absent.

Case Details

Case Name: Caldwell v. Travelers Insurance Co.

Court Name: Supreme Court of Missouri

Date Published: Dec 18, 1924

Citation: 267 S.W. 907

Court Abbreviation: Mo.